Justin Sanchez sued the Los Angeles Department of Transportation (“LADOT”) alleging that their conditioned issuance of e-scooter permits violated the Fourth Amendment. To obtain the necessary permit to operate in L.A., e-scooter companies like Bird and Lyft must collect real-time location data of their scooters and provide it to LADOT, who can then store the information pursuant to existing data-retention policies. The district court found there was no reasonable expectation of privacy in this information and dismissed Sanchez’s complaint for failing to state a claim.
On appeal from the dismissal, the Ninth Circuit affirmed, finding that the third-party doctrine applied. In so holding, the Ninth Circuit stated that the Supreme Court, in Carpenter v. United States, 138 S. Ct. 2206 (2018), had not eliminated the third-party exception when it failed to extend it to cell-site location information maintained by wireless carriers. Instead, the Carpenter Court had considered (1) the nature of the information, and (2) the voluntariness of the exposure to hold that cell phone users, whose locations are continuously collected by wireless carriers whenever the device is turned on, have a legitimate expectation of privacy in that information.
However, in considering the same two factors, the Ninth Circuit held that the information obtained by LADOT did not carry the same privacy concerns. It noted that (1) the information only revealed a particular user’s location for a limited time, and the user’s identity was anonymous without more. Furthermore, (2) the e-scooter was not a pervasive or necessary part of modern society, and the transaction itself contemplated disclosure of location information, as that is how the rental fee is calculated. Thus, the third-party doctrine applied, and LADOT’s conduct was not a search.
Appeal from the Central District of California
Opinion by Hurwitz, joined by Wardlaw and Rosenthal (sitting by designation)
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